Lawyers Can Use Targeted Mail Ads

June 15, 1988|By Joseph R. Tybor, Chicago Tribune.

WASHINGTON — The U.S. Supreme Court ruled Monday that states may not categorically prohibit lawyers from soliciting business through the mail by sending advertisements directly to people known to have particular legal problems, a practice some consider a form of ambulance chasing.

About half the states in the U.S. had banned targeted direct-mail advertising, relying on model ethics rules written and ratified by the American Bar Association. But a 6-3 majority of the court said such a general prohibition violates the 1st Amendment guarantee of free speech.

The bar association and several other organized bar associations opposed overturning the prohibitions, fearing that it would subject vulnerable victims of misfortune to intimidation and other potential abuses by overbearing attorneys, who could compile lists from obituaries and accident reports.

``People with problems are simply not fair game for lawyers selling their services,`` argued the Association of Trial Lawyers of America in a friend-of- the-court brief filed in the case.

``It upsets me to see a decision like this,`` said Eugene Pavalon, a Chicago attorney and president of the trial lawyers group, a bar organization representing attorneys who sue on behalf of accident victims.

Pavalon said that without proper safeguards against targeted direct-mail advertising, the decision could lead to unscrupulous attorneys acting as

``brokers``-soliciting the family of an airplane crash victim, for instance, then referring the case to another lawyer and splitting a portion of the recovery with that attorney as a fee.

``You may see inexperienced lawyers soliciting and securing clients even without the intention of necessarily handling the case,`` Pavalon said.

Despite the potential abuses, the majority opinion, written by Justice William Brennan, said a general ban on targeted mail solicitation is unconstitutional as long as the letters do not make false or deceptive claims. States may guard against abuses by requiring attorneys to submit solicitation letters to an appropriate disciplinary agency for review and requiring that the letter bear a label identifying it as an advertisement, Brennan said.

Brennan relied on a line of cases going back to 1977, when the court overturned the legal profession`s traditional ban on any kind of advertising. A year later, in a case involving a lawyer who signed up an accident victim in a hospital, the court upheld state regulations against direct, face- to-face solicitation of clients because such a practice is ``rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence and outright fraud.``

Targeted direct-mail solicitation differs from in-person solicitation because ``unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the reader of an advertisement can effectively avoid further bombardment of his sensibilities simply by averting his eyes,`` Brennan wrote.

``A letter, like a printed advertisement but unlike a lawyer, can readily be put in a drawer to be considered later, ignored or discarded.``

Justice Sandra Day O`Connor wrote a vigorous dissent, calling on the court to re-examine the ``flawed reasoning`` of its advertising cases and take into account the ``substantial government interest`` in promoting high ethical standards in the legal profession.

``Soliciting business from strangers who appear to need particular legal services, when a significant motive for the offer is the lawyer`s pecuniary gain, always has a tendency to corrupt the solicitor`s professional judgment,`` O`Connor wrote. She said it is a mistake for the court to compare advertising the services of a lawyer with advertisements for other consumer products.

O`Connor was joined in dissenting by Chief Justice William Rehnquist and Justice Antonin Scalia.

Sherman L. Cohn, a professor of law at Georgetown University, called targeted direct-mail solicitation a form of ambulance chasing and said it is almost certain to increase now that the practice has been ratified by the Supreme Court.

For instance, the Academy of Florida Trial Lawyers reported that within six months after Florida made direct-mail solicitation legal last year, accident victims, bereaved spouses, parents and other victims of misfortune

``were being inundated`` with mailed solicitations by Florida lawyers.

Robert McCrate, president of the American Bar Association, said in a statement that the organization will move promptly to ``develop the most effective standard we can devise to protect the consumer, consistent with today`s ruling.``